Citation Nr: 21024606 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-14 111A DATE: April 23, 2021 REMANDED Entitlement to a rating in excess of 70 percent for major depression, prior to May 15, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability, prior to May 15, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to December 1985. The Veteran has a 100 percent schedular VA disability rating, based on major depression, from May 15, 2020. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In December 2019, the Board remanded the claims for further development. During remand status, the Veteran was awarded a rating of 100 percent for service-connected major depression, effective May 15, 2020. See Rating Decision (August 2020) & Rating Decision (September 2020). Because this award does not constitute a full grant of benefits sought on appeal, the matter remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (holding that claimants are presumed to seek the maximum available benefit for a disability). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to a rating in excess of 70 percent for major depression, prior to May 15, 2020, is remanded. To ensure due process of law, the Board finds that remand is necessary for issuance of a supplemental statement of the case (SSOC). 38 C.F.R. § 19.31(c). The Board remanded this issue in December 2019. Pursuant to 38 C.F.R. § 19.31(c), the agency of original jurisdiction (AOJ) is to issue a SSOC when, pursuant to a Board remand, it develops evidence or cures a procedural defect. The only exceptions to this requirement are if: (1) The only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior statement of the case (SOC) or SSOC, or (2) the Board specifies in the remand that a SSOC is not required. In the instant case, the AOJ developed additional evidence following the December 2019 Board remand. Then, in August 2020 and September 2020, SSOCs were issued. The SSOCs, however, did not adjudicate the issue of entitlement to a rating in excess of 70 percent for major depression, prior to May 15, 2020. The December 2019 Board remand did not explicitly indicate that a SSOC was not required. Additionally, the underlying purpose of the remand was not to assemble records previously considered by the AOJ and properly discussed in a prior SOC or SSOC. Accordingly, 38 C.F.R. § 19.31(c) entitled the Veteran to a SSOC regarding the issue of entitlement a rating in excess of 70 percent for major depression, prior to May 15, 2020. Accordingly, the Board finds that remand is warranted for the issuance of a SSOC to correct this due process error. 2. Entitlement to a TDIU due to service-connected disability, prior to May 15, 2020, is remanded. The Veteran, and his representative, seeks a TDIU due to his service-connected major depression. See Medical Treatment Record-Non-Government Facility (January 2020) & Third Party Correspondence (June 2019). The Board finds the Veteran’s claim for a TDIU is inextricably intertwined with the claim of entitlement to a rating in excess of 70 percent for major depression, prior to May 15, 2020. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claim. The matters are REMANDED for the following actions: 1. Obtain all VA treatment records dated from November 2020 to the Present. 2. After completing any additional development deemed necessary, readjudicate the Veteran’s claims of (1) entitlement to a rating in excess of 70 percent for major depression, prior to May 15, 2020, and (2) entitlement to a TDIU due to service-connected disability, prior to May 15, 2020. (Continued on the next page)   3. If the benefits sought remain denied, provide an additional SSOC to the Veteran and his representative and afford them an opportunity to respond. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.